Baburajan v. Director General of Police, Thiruvananthapuram and Others

MACA NO. 2331 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 MACA NO. 2331 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1081/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/S:** BABURAJAN, S/O LATE MADHAVAN, POLICE QUARTERS, G-45/1,, COLLECTORATE P.O., KOTTAYAM. BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI ## **RESPONDENT/S:** 1 DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM. 2 THE DISTRICT OFFICER, KERALA STATE INSURANCE,, KANJIKUZHI, MUTTAMBALAM P.O.,, KOTTAYAM. 3 T.M. HANEEFA H.C. 564 POLICE STATION, PERUVANTHARA, IDUKKI DIST. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2331 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1081/2006 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation from the respondents on account of the injuries that he sustained in an accident on 18.08.2005. It was his case that, while he was traveling in a jeep bearing registration No.KL-01 X 9326 (jeep) owned by the 1[st] respondent – Director General of Police, – Thiruvananthapuram, along the Kuttikkanam Peruvananathanam road, when the jeep reached 40[th] mile, due to the rash and negligent driving of the jeep by the 3[rd] respondent, the jeep overturned. The appellant sustained serious injuries including a servical spine injury. The appellant was a Policeman attached to the Peruvananathanam police station and drawing a monthly salary of Rs.7,578/-. He took leave for 190 days for his medical treatment. The jeep was insured with the 2[nd] respondent. Hence, the appellant claimed from the respondents an amount of MACA NO. 2331 OF 2009 3 Rs.4,35,000/-, which claim was limited to Rs.2,50,000/-. 3. The 1[st] respondent had filed a written statement contending that the claim petition was not maintainable in law. It was averred that, while the appellant and six other police personnels were traveling in the jeep, the jeep's brakes failed and it hit against the sand cutting, and the jeep overturned. The 3[rd] respondent was driving the jeep at moderate speed. The police after conducting its investigation on Crime No.111/2005, found that the accident was occurred due to the mechanical defect of the jeep **.** The Assistant Motor Vehicle Inspector has certified that the accident occurred due to the fluid leakage in the pipe line of the right front wheel cylinder of the jeep. Therefore, there was no negligence on the part of the 3[rd] respondent in causing the accident. Hence, the claim petition be dismissed. 4. The 2[nd] respondent had filed a written statement disputing the age, income and occupation of the appellant. The 2[nd] respondent also reiterated the same pleadings as that of the 1[st] respondent. 5. The 3[rd] respondent had filed a written statement, interalia, contenting that, while he was driving the jeep with MACA NO. 2331 OF 2009 4 utmost care and by abiding all traffic rules, due to the mechanical defect of the jeep, the jeep lost control and the accident was caused. There was no negligence on the part of the 3[rd] respondent. He also prayed the claim petition be dismissed. 6. The appellant produced and marked Exts.A1 to A11 in evidence. The 2[nd] respondent produced and marked Exts.B1 to B3 in evidence. 7. The Tribunal, after analysing the pleadings and the materials on record, dismissed the claim petition, on the finding that there was no negligence on the part of the 3[rd] respondent in causing the accident, which was due to a only mechanical defect in the jeep. Therefore, the appellant is not entitled for any amount as compensation under Section 166 of the Motor Vehicles Act, 1988. 8. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal. 9. Heard; Sri.M.V. Thampan, the learned counsel for the appellant/petitioner and the learned Government Pleader appearing for the respondents 1 and 2. 10. The question that arises for consideration in this appeal MACA NO. 2331 OF 2009 5 is whether the dismissal of the claim petition is sustainable in law or not. 11. The definite case of the appellant in the claim petition was that, the accident occurred due to the negligence of the 3[rd] respondent, who drove the jeep at high speed and the jeep ran over the side cutting, and it overturned. The appellant himself had produced Ext.A2 charge sheet and Ext.A5 Motor Vehicle Inspection report. 12. On a perusal of Ext.A2 charge sheet, it is seen that the Peruvananathanam Police after investigation in Crime No:111/2005 found that the accident occurred due to the mechanical defect of the jeep. The conclusion of the police in Ext.A2 is principally based on the finding of the Motor Vehicle Inspector in Ext.A5 inspection report, wherein it is stated that the accident occurred due to the fuel leakage in the pipe line over the right front wheel cylinder of the jeep. 13. It is settled law that in a claim under Section 166 of the Motor Vehicles Act, 1988, the essential ingredient to be established is the negligence of the driver of the offending vehicle. MACA NO. 2331 OF 2009 6 14. In the case at hand, the appellant had produced Ext.A2 charge sheet and Ext.A5 AMVI report, which stares at him, and the police have found that there is no negligence on the part of the 3[rd] respondent. 15. In **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648], a Division Bench of this Court has succinctly held that, production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet would fall into a pale of insignificance. 16. Here, it is the appellant who has produced the charge sheet proving that there was no negligence on the part of the 3[rd] respondent. The appellant has not let in any evidence to the contrary to substantiate that there was negligence on the part of the 3[rd] respondent in causing the accident. On the other hand, Ext.A5 vehicle inspection report shows that the accident was MACA NO. 2331 OF 2009 7 caused due to the fluid leakage in the pipe line over the right front wheel cylinder of the jeep, which is a mechanical defect. I do not find any error or illegality in the conclusion arrived at by the Tribunal in this regard. 17. The learned counsel appearing for the appellant relied on the judgment of the Honourable Supreme Court in **Kausnuma Begum vs. New India Assurance Company Ltd** . [2011 (1) KLT 408 SC], to drive home his contention that even if there is no negligence on the part of the driver or owner of the motor vehicle, but if the accident happens when the vehicle was in use, the owner can be made liable for the damages to the person, who suffers injuries in an accident based on the rule in **Rylands vs. Fletcher** [(1868) LR 3 HL 330]. 18. A three Judge bench of the Honourable Supreme Court in **Reshmakumari vs. Madanmohan** [2013 (2) KLT 304 SC] has emphatically held that, while making an application claiming compensation under Section 166 of the Motor Vehicles Act, 1988, it is imperative for the claimant to prove negligence on the part of the Driver of the vehicle. The onus of proof is on the claimant to establish the negligence on the part of the driver of the alleged MACA NO. 2331 OF 2009 8 offending vehicle, only then the claimant is entitled to compensation. 19. In **Minu B. Mehtha and another vs. Balakrishna Ramachandra Nayan and another** [(1997) 2 SCC 4], again a three Judge Bench of the Honourable Supreme Court, while considering the question whether the fact of injury resulting from the accident involving the use of a vehicle it is necessary to prove negligence on the part of the driver, held that the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort and before the Master could be made liable, it is necessary to prove that the servant was acting during the course of his employment was negligent. It is further held that the concept of the owners liability without any negligence is opposed to the basic principles of law. A mere fact that the person died or a party received injuring arising out the use of a vehicle in a public place cannot justify fastening liability on the owner. It was concluded that the proof of negligence is necessary before the owner or insurance company could be held liable for payment of compensation in a motor accidents claim. MACA NO. 2331 OF 2009 9 20. In the light of the authoritative declaration of law in **Reshmakumari** and **Minu B. Mehta** (supra), it can only be held that the observation made in **Kausnuma Begum** was pertaining to the peculiar facts and circumstances of that particular case. On a comprehensive re-appreciation of the pleadings and materials on record, and the findings rendered by the Tribunal, particularly taking note note of Ext.A2 charge sheet and Ext.A5 AMVI report and the law in **Reshmakumari and Minu B. Mehta** , I do not find any error or illegality in the conclusion arrived at by the Tribunal that there was no negligence on the part of the 3[rd] respondent in causing the accident. Resultantly, the 1[st] respondent is not vicariously liable and there is no question of the 2[nd] respondent indemnifying the 1[st] respondent. The appeal is devoid of any merit and is hence dismissed. **Sd/-** **C.S.DIAS JUDGE** rkc/01.12.21